R v Smith
[2000] VSC 561
•6 December 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1511 of 1999
| THE QUEEN |
| v. |
| MARK JOHN SMITH |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 6 DECEMBER 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 561 | |
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CATCHWORDS: Murder – Attempted murder – Administration of volatile anaesthetic – Fire – R. v. Beckett, Vic. S.C. (unreported 20 August 1998).
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. W. Morgan-Payler Q.C. and Mr. R. Barry | Office of Public Prosecutions |
| For the Accused | Mr. S. Langslow | Victoria LegalAid |
HIS HONOUR:
Mark John Smith, the jury empanelled upon the trial at which you are presented for the murder of your infant son, Adrian Kingsley Smith, on 4 October 1995 at Hoppers Crossing in the State of Victoria, and at the same date and place, attempting to murder your then wife, Nicole Taylor, has, after due deliberation, found you guilty of each of these crimes.
Accordingly, it is now my responsibility to impose sentence upon you.
Against this background, I observe that you have had no prior involvement with the criminal law.
The circumstances surrounding the commission of your offence have been canvassed in detail in the trial, and it is necessary at this stage to address them only in a relatively brief form.
You met Nicole Taylor at around the end of 1989 when you were stationed as a member of the RAAF at Amberley in Queensland. Approximately a year later, you became engaged to her and a marriage date was set for September 1991. However, the ceremony was moved forward, as you were posted to the United States as part of a team involved in work relating to F1-11 aircraft. Your wife and yourself then went to Orlando, Florida, where you resided until early 1994. The American company with which your team was working then transferred its operations to premises at Palm Bay, which I understand is situated approximately 50 kilometres from Orlando. It appears that you commuted between these locations for some time but, eventually, the two of you moved to Palm Bay.
By this time, you had become dissatisfied with your marriage to the extent that, not long after you commenced to work at Palm Bay, you approached your superior, a man named Len Neist, seeking advice as to the difficulties associated with the institution of divorce proceedings in the United States.
The precise causes of your dissatisfaction have not emerged. You provided no history of disputation between your wife and yourself to the witness, and you made no specific complaint about her. However, you did indicate to him that you felt that the two of you had little in common. It is apparent that Nicole had no idea that you felt so strongly about the situation and she was unable to recall more than one occasion on which reference to the possibility of separation was mentioned. As the matter was never raised again, she assumed that you were not seriously considering the break-up of your relationship.
Mr Neist indicated to you that there were some organisational difficulties associated with the commencement of divorce proceedings during an overseas posting and suggested that you should wait until you returned to Australia. You agreed to do so. Later that year, when Nicole became pregnant, you told him that you had changed your mind, as you wanted the child.
It appears that, shortly before the move to Palm Bay was effected, you noticed the presence at your workplace in Orlando of a young female employee of the American company, named Donna Wilkinson, who was assisting with the necessary arrangements. In an interview with Sergeant Bona of the Victoria Police, you described your reaction to her as follows:
"I remember racing up to Steve and saying, 'Steve, Steve [Dickerson], come and check out this girl.'"
A little later in the interview the following exchange took place:
"SMITH: Yeah, I said, 'There is a good one downstairs' - - - "
BONA: M'mm.
SMITH: 'Go check her out'.
BONA: So she - she had a - that sort of reaction on you, though?
SMITH: Yeah.
BONA: You thought she was a good looking lass?
SMITH: She was definitely attractive, yeah."
It is evident that you were instantly attracted to Ms Wilkinson.
Some time after the move to Palm Bay, she began to work as Mr Neist's secretary and you came into regular contact with her. The evidence indicates that you enjoyed her company and that you became sufficiently friendly with her that on one occasion you went with her when she attended a medical practitioner for an ultrasound examination related to her pregnancy. I will return to this aspect.
It is highly likely, in my view, that by the time that you returned with your wife to Australia at the end of 1994, Donna Wilkinson had created a powerful impression upon you. I observe in this context that, after you returned to this country, you remained in contact with her, and made references to her on occasions in conversations with workmates. For example, you mentioned her to one of the witnesses, Peter Hills, as "good looking" and "a lot of fun to be with". When she rang you at your workplace on another occasion you pointed out to Squadron Leader Dolling that she was the female in a bikini in a group photograph that you kept at your work station.
In January 1995 you were posted to the Laverton RAAF Base and, with your wife, you moved into a house leased by the RAAF at 7 Lorena Close, Hoppers Crossing, the scene of the fire that claimed the life of one of your victims and almost claimed the life of the other. Before taking up this position, however, you worked at the RAAF Headquarters in St Kilda Road for a short period. You remained stationed at Laverton until you left the Air Force in December 1995 in circumstances to which I will return.
On 7 January 1995, Ms Wilkinson also arrived in this country. She had become pregnant to another RAAF member and had entered into a marriage of convenience with a man named Greg Cabezas, who was also an RAAF member, in order to enable her to move here. However, when Mr Cabezas came to appreciate the legal significance of the submission of documents to the Department of Immigration containing false or misleading statements concerning the genuineness of the marriage, he withdrew from the arrangement. Ms Wilkinson continued to reside here, living with Mr Neist and his family in Canberra on a temporary visa for several months afterwards. Her child, Melissa, was born on 29 May 1995, and your son, Adrian, on 25 July 1995. Ms Wilkinson stayed in Australia until 22 September 1995, when, her visa having expired, she returned to the United States. Although, as I have indicated, there is evidence of some contact between the two of you during this period, it is not possible to arrive at any finding as to the frequency with which it occurred.
The evidence indicates that you became quite dissatisfied with the nature of the duties to which you were assigned upon your return from the United States. They appear to have been undemanding and provided you with little opportunity to use your considerable skills. In consequence, you began to contemplate the possibility of resignation from the RAAF. Although this matter was discussed with your wife, there is no suggestion that any definite decision had been made. Indeed, on 15 June 1995, you made an application for an appointment as a commissioned officer in the service.
As far as your marriage was concerned, your wife was unaware of any sense of dissatisfaction on your part, and you gave every indication that you were looking forward to the forthcoming birth. Your apparent reaction of pleasure when Adrian was born provided no hint of what must have been, in view of later events, at least some underlying ambivalence.
It appears that two events, which occurred in September 1995, dramatically affected the situation and acted as catalysts for the commission of your crimes.
The first of them was the holding of a conference in Canberra which you attended, and in the course of which you spent some time with Donna Wilkinson and her baby.
The second was her departure from Australia on 22 September, within five days of which, and without informing your wife that you had done so, you submitted your resignation from the Air Force.
When that application came before your superior, Squadron Leader Dolling, on 3 October, he spoke to you about it and urged you to reconsider your decision. In his evidence, he put the matter this way:
"I was disappointed that Mark had put in for discharge because we would lose someone good. I asked him why he was leaving to see if I could change his mind and make sure he was certain about what he wanted to do and he gave me an indication he really wanted to work in more software related fields and had an offer of a job in America and I must admit I was not too surprised, so after some time I determined I couldn't change his mind.
(Prosecutor) Did you attempt to do that?"---Yes.
What did he say when you did that?---He said that he really was - definitely wanted to take up this offer in America and that he - I think he was a little bored with what I had him doing, so he was going to discharge from the air force."
There was in fact no such job.
During the trial, it was contended on your behalf that, as an application for discharge could be withdrawn at any stage before it became effective after three months, the action of submitting it was intended to constitute a form of pressure to ascertain if a grant of a commission could be secured. This interpretation is, in my opinion, unsustainable when regard is had to the character of the conversation with Squadron Leader Dolling. I am satisfied beyond reasonable doubt that, probably precipitated by the departure of Donna Wilkinson, you had formed the clear intention to return to the United States as soon as you were able to do so. When regard is had to the fact that you had said nothing to your wife concerning this decision, the further inference that you did not contemplate that Nicole and the baby would accompany you can also reasonably be drawn.
On the following morning, at about 7 o'clock, you placed a cloth impregnated with a volatile anaesthetic, possibly ether, over the face of your sleeping wife. She awoke and struggled as she inhaled its acrid fumes, but you held her down until she lost consciousness. You then took Adrian from the bassinet in which he had been placed by Nicole in the loungeroom, after he had been fed at about 5 a.m., and put him into the bed beside her. Then, using an aromatherapy burner that had been purchased only a few days earlier, you staged a setting designed to indicate that an accidental fire had occurred and set fire to the bed. You left the house and went to work as if nothing abnormal had happened.
Your wife awoke and, although she had sustained a very severe injury to her right arm, managed to escape from the room, still affected by the anaesthetic and not realising that the baby had been placed on the bed, which was being engulfed by fire. The child was, for practical purposes, incinerated. In the meantime, you had travelled to your workplace approximately 15 minutes away by car. You pretended to be devastated when you received news of what had occurred, and maintained this posture thereafter.
However, on 12 October, which, it must be remembered, was only eight days after the fire, and three days after the funeral of your child, you wrote a letter to Donna Wilkinson, not discovered until a search was conducted in August of this year in the flat occupied by her in Florida. It was expressed in the following terms:
"12 Oct 95
Hi Donna,
I was worried you wouldn't be able to read my writing. But then I remembered that you had to interpret my scribbles back at Harris.
As you can see, here is another cheque. I've put it in your mum's name so she can easily put it in her account.
I checked out a few things yesterday, about Nicci. All her expenses are paid by Medicare, and she will be entitled to a disability pension. I think I was a bit worried about that. I don't love her, but I'm not cold and heartless either.
I'm looking forward to so many different things when we get started in the US. I can't remember if I said this, but any amount of money I send over can be used for whatever purpose you see fit. (Including your personal loan). You would manage money better than me anyhow.
Give Melissa a kiss for me, and say hi to your mum and dad. Talk to you soon.
Love, Mark."
I regard this extraordinary document as informative in several significant respects.
First, there is an assumption in it that the recipient was already well aware of what had happened only a matter of days previously, as a result of communication between the parties. This, I consider, in the circumstances is indicative of the closeness of your relationship with Donna Wilkinson at the time.
Second, there is a reference to the earlier provision of money to Ms Wilkinson. The cheque that accompanied the letter clearly did not represent the first amount forwarded to her and it was made out "in your mum's name". It would seem to be reasonably clear that this course was adopted to reduce the risk that the payment may attract suspicion.
Third, you stated that you had "checked out a few things" in relation to your wife. This activity must have been undertaken, at most, only a week after the fire, and at a time when she was in hospital, very badly injured. You seem to find it necessary to point out to Donna Wilkinson in the letter that you were not in love with your wife, but your sensitivity to her situation was demonstrated by the fact that, within two days of your child's funeral, you had made inquiries concerning her medical expenses and her entitlement to a disability pension. You said, "I think I was a bit worried about that."
Fourth, there is a clear implication of some earlier understanding reached between the two of you that you would "get started in the US", and an obvious anticipation of that time. How and when that understanding was arrived at is, at this stage, unknown, but it defies reason to suggest that it was effected after the fire.
The letter is also remarkable for its general tone and the total absence of the expression of any sense of grief consequent upon the loss of your son, or any hint with respect to your wife of the human sympathy that one might anticipate would be experienced in relation to a complete stranger who had suffered such a terrible loss or had sustained such a serious injury.
Although you assert that "I'm not cold and heartless" with respect to the situation of your wife and the death of your child, this letter constitutes powerful evidence to the contrary.
In the course of presenting submissions on your behalf when the matter was last before the court, your counsel, Mr Langslow, asserted that you had experienced a deep sense of loss consequent upon the death of your son. It had earlier been claimed on your behalf that your conduct in the period after the fire, which included your resignation from the Air Force, your journey back to Orlando, and your obvious attachment to the child, Melissa, should be interpreted as the reflection of profound grief, a sense of personal responsibility for what had happened and a desire to replace what had been lost. There is, in my opinion, little in the evidence that I regard as capable of providing any significant support for these claims.
Whatever sense of guilt or grief or remorse you may in fact have felt, or currently feel, arising from the death of the baby, your attitude towards Nicole Taylor has been maintained, and can clearly be seen in your subsequent conduct and the various references to her in the police interviews.
As you left Australia on 27 December, the following undated letter, which was also discovered in the search of the flat of Donna Wilkinson, must have been written at around 22 November.
"G'day Mate
Only one month and one week to go - yeah.
I have enclosed another $2000 and some photos of Adrian. There is also my itinerary to Orlando. I picked the early flight into MCO. It gives me more time to see everyone on the 28th.
One thing that's being held up at the moment (which won't affect me going over) is my retirement benefits. The employer contribution (=$105,000) requires proof of my leaving Australia for good. Depends on who I talk to as to how much proof they need.
Anyhow, I found out that Nicci will not get any disability pension because I earn too much, so that is incentive for her to backdate our separation date.
This is the most writing I've done since you had to type what I wrote. I'm getting writer's cramp - - -
I will get our address for our apartment soon so I can send what I need to ship. I miss you heaps and heaps.
Well, I suppose this about it. Talk to you soon.
Love, Mark.".
This letter, which is similar in tone and content to the one earlier set out, reinforces, in my view, the inferences that can be drawn from the previous communication.
I have incorporated these letters in my sentencing remarks as they relate to your motivation for committing such terrible crimes and provide some insight into your personality. They contribute in small measure to the development of some understanding of your actions.
On 22 November, you paid for an airline ticket to Orlando, the booking for which had apparently been made a few days before. On 24 November, you opened a separate bank account with the Commonwealth Bank, about the existence of which your wife was not informed, and into which your service entitlements and superannuation benefits were to be paid. This latter action was obviously taken in an endeavour to deny Nicole access to funds that you wanted available for what could reasonably be described as "your new life".
It was not until Monday, 27 November, that you informed your wife that you were leaving her and that you were resigning from the Air Force. She gave the following evidence on this aspect:
"Mark went downstairs and had his shower at the hospital. He came back in his work uniform. I was sort of getting ready for breakfast, he would help me with breakfast, fed me, that sort of thing. He picked up his bags and things when he was leaving for work, he headed out of the room and he said, 'I made two decisions, one is I want a separation and one is I am leaving the RAAF.'
How did you feel on receiving that news?---Devastated. What could I do? I couldn't run after him. I couldn't get out of the bed. We talked for a little while about it, he couldn't give me any explanations or anything or tell me how he was feeling.
Putting work to one side for the minute, he also told you he was leaving you, did he tell you why?---No.
Did he tell you whether it was permanent or temporary?---No.
What about work, did you have any inkling he was going to leave work?---No."
Of course, you did not tell her that you had submitted your resignation two months earlier or that you intended to "get started in the US". She had no idea that you were about to leave the country, and only learned that you had done so when she subsequently attempted to contact you at your parents' home to wish you a happy New Year.
During the period that you were in the United States you made a number of financial arrangements consistent with your intention to take up residence there, including the transfer of most of your funds. You wrote to your wife, giving her a false account of your movements and no indication of your plans.
You returned to Australia for a visit with Donna Wilkinson and her child in March 1996. It appears that you separated for some time while you went to see some members of your family. In view of the evidence concerning her financial position, I consider that it is highly likely that you paid for all of the expenses associated with this trip. You were in the process of returning to America during the following month but were prevented from doing so, pursuant to the grant of an injunction to Nicole Taylor by the Family Court.
Ms Wilkinson and her child left without you shortly afterwards.
Some time later, you moved to Jabiru in the Northern Territory where your parents were residing. You obtained employment there in the computer industry and were so working when you were arrested on 5 August 1999. You were subsequently extradited to Victoria.
There is no need, for present purposes, to set out the history of the lengthy investigation which was conducted into your affairs, nor the body of evidence concerning your relationship with Donna Wilkinson. It is sufficient to state that, although most of the evidence as to your involvement with her relates to the period after you committed your offences, I am satisfied beyond reasonable doubt that, by the time of the fire, you had developed, and have maintained, a powerful, indeed possibly obsessive, attachment to her.
I consider that it is extremely likely that you found your period of service in the United States to be both exciting, enjoyable and that you wanted to construct a lifestyle with Donna Wilkinson based on images that you carried with you back to Australia. Rather than leave your wife and child, and thereby be seen to have abandoned them, or be required to provide financial support for them, you then decided to remove them entirely from the picture in a fashion that would attract no opprobrium to you.
After considering the substantial body of evidence adduced in the trial, including the letters set out, and having observed you over a period of several weeks in this court, I have concluded that you are a self-centred individual, who, lacking any sense of compassion for your wife and child, and possessing a great deal of confidence in your own capacities, simply decided that the deaths of your wife and child in an "accidental" fire would resolve all such issues and leave you completely free.
Your action in attempting to conceal the money that you received when you resigned from the Air Force is consistent with this approach. More significant, in the same context, is the creation by you, at some stage, of a family tree in which Donna Wilkinson appeared as your wife and her child, Melissa, as your natural child, with no reference to Nicole or your own child, Adrian. They were disregarded as if they had never existed.
Nevertheless, in the face of a substantial body of evidence relating to your relationship with Ms Wilkinson, including the discovery of Mark and Donna's secret web page on your computer, the purchase of an engagement ring for her, and other clear indications of the continuing association between Ms Wilkinson and yourself, the position was maintained throughout the trial that your conduct in the early period after the fire represented a form of grief reaction, combined with a sense of guilt, that what was described as the "tender action" in lighting the aromatherapy burner could have had such terrible consequences.
Understandably, when regard is had to the totality of the evidence, some of which was only located by the investigating police team when the apartment occupied by Ms Wilkinson and you in Florida was eventually searched by the FBI and local police members, this interpretation must be rejected in my view.
It would seem to be clear that, consistent with your personality and not anticipating the extent and character of the investigation which would be undertaken, you believe that you would be able to create doubt concerning the true character of your relationship with her and thereby remove the motivation which would make explicable the performance of the cold-blooded acts ascribed to you. Eventually, you found yourself compelled to maintain an increasingly implausible position.
You are, I consider, a calculating individual who, having decided what he wanted, was prepared to let nothing stand in the way of the achievement of his desires, not the life of his child and certainly not that of a wife of whom he had grown tired.
You almost succeeded in your design but, fortunately, Nicole Taylor survived, and was able to recall enough of what had happened so that an extensive investigation involving the police services of both countries was conducted and you were brought to this court and a jury of your peers.
The crime of murder which you committed when you callously and deliberately caused your son to be burned to death, is, for practical purposes, the most serious known to our law and your conduct constitutes a particularly heinous example of it.
As I remarked only last week when imposing sentence, the life of every person who shelters behind the protective shield of our law is inviolate and none can be unlawfully taken. This is both a profoundly important moral precept and a principle of law based on sheer necessity if we are to live together in a decent and safe community.
It follows, accordingly, that not only must the courts through the sentences that they impose, endeavour to deter those who may be inclined to act as you have done, but also, on behalf of the community which they represent, express its unequivocal denunciation of such behaviour.
Obviously, much of what I have said is applicable to the offence of attempted murder. It is conduct which must be regarded as very serious indeed, involving as it does the presence of a specific intention to kill the proposed victim and to undertake actions clearly directed to achieving that objective. The principles of deterrence, denunciation and just retribution to which I have already made reference, have application in the circumstances of your case to the offence of attempted murder.
I have read the victim impact statement of Nicole Taylor whose trust you savagely betrayed. She is an intelligent woman who is well aware that, not only will she have to endure, almost certainly for the rest of her life, an ever present sense of anguish and loss occasioned by your murder of her child, but also the physical and personal consequences of the injury that you have caused to her. You have given her a truly terrible legacy.
With respect to the manner in which I have approached the victim impact statement I will repeat some remarks I have made in a number of recent cases:
"The introduction of such statements was not, as I see it, intended to effect any change in the sentencing principles which govern the exercise of discretion by a sentencing judge. What such statements do is introduce in a more specific way factors which a court would ordinarily have considered in a broader context. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge, who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it."
(R. v. Beckett Vic. SC, unreported, 20 August 1998).
However, the considerations to which I have adverted are not the only matters to be taken into account in the determination of an appropriate sentence and, of course, each case, each offender, must be considered in the light cast by all of the circumstances relevant to the specific offence and the individual perpetrator.
You are now aged 37 years, having been born in Cobram on 22 September 1963, the second of three children. You lived with your family on a dairy farm at Yarraweyah, which is located near Cobram, until you were 18 years old. As a young man you were involved in sport, in particular, basketball and golf, and you were a member of the local church where your mother was the lay preacher. You were also interested in music, and you assisted with your school's musical and stage productions.
After completing your HSC in 1981, you joined the RAAF and you were initially stationed at Laverton. Whilst working for the Air Force you continued your studies, pursuing a course in electronic engineering. You subsequently went on to obtain a Master of Science degree, majoring in computers. After three years at the Laverton RAAF Base you were posted to Amberley in Queensland, where you commenced work on F-111 aircraft. As earlier mentioned, it was there in about 1989 that you met Nicole Taylor.
In view of your background and in the absence of any prior convictions, I consider that your prospects of eventual successful reintegration into the community appear to be good. In that situation, no need exists to have regard to the protection of the public or specific deterrence as sentencing considerations. Significant regard must be had in your case to your rehabilitation as a sentencing consideration.
I have had regard to the range of sentences handed down in this court over recent years for the crimes of murder and attempted murder, bearing in mind that each case must be separately considered.
Ultimately I have arrived at the view that the appropriate sentences to be imposed upon you are:
On Count 1, the murder of Adrian Kingsley Smith, you are sentenced to imprisonment for a term of 22 years.
On Count 2, the attempted murder of Nicole Taylor, you are sentenced to imprisonment for the term of 9 years.
Four years of the sentence on Count 2 are to be served cumulatively upon the sentence imposed on Count 1.
That creates an effective sentence of 26 years.
I fix a non-parole period of 22 years.
I declare that the period of 490 days during which you have been in custody as pre-sentence detention be reckoned as having been served under the sentence hereby imposed and I direct that this declaration and its details be entered in the records of the court.
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